European Law Blog News and comments on EU law

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Unwired Planet v. Huawei, Judgment of 26 August 2020, [2020] UKSC 37, upholding the High Court and Court of Appeal decisions ([2017] EWHC 711 (Pat) and [2019] EWCA Civ 38) in the related cases Unwired Planet v. Huawei and ZTE v. Conversant What are standards and why are they important to patents and competition law?Whether we realise it or not, EU citizens make use of technological ‘standards’ every day. USB is a standard. MP3 is another. The 4G (and now 5G) communication technologies we use contain a host of standards. Without the use of standards there would be no interoperability between devices manufactured by different companies. Thus, standardisation enables efficiency gains that benefit consumers, by allowing manufacturers to increase the overall size of markets, achieving vast economies of scale as well as increased product substitutability. Standardisation is particularly crucial in the information and communication technology (ICT) and Internet of Things fields (IoT) (consumer electronics, automotive industry, and electricity grid industry).Patents are a type of property. As with any kind of property, owners must be able to enforce their rights against competitors who are trespassing, or infringing, upon their patents. Without the ability to enforce, there would be no way to recoup the investment in resources required to create a new patentable invention in the first place. Patents cover new inventions, including important technology standards. Patents on standards are commonly known as Standard-Essential Patents (SEPs) and are frequently litigated.The existence of SEPs – and associated litigation has potentially disruptive consequences for the manufacture, marketing and distribution of complex products that include many patented standards, e.g. ICT products such as smart-phones incorporating a camera, a video, a web browser, wireless, text messages, etc, as well as an increasing array of IoT ‘networked’ products such as wearable devices and appliances for ‘smart homes’. By enforcing their patents – their time-limited monopoly rights owners of SEPs could, if they wished, use the patent enforcement system to ‘hold up’ or prevent competitors from launching rival products that use the same standards.Continue reading The European Law Blog will be taking a summer recess. We’ll be back end of August with new commentaries, including on key summer developments. Please do send us on your contributions throughout this period and we will get back to you in due course. Happy Holidays to all our readers!On 16 July 2020 the Court of Justice of the European Union (CJEU) composed as Grand Chamber delivered its landmark ruling Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems (case C-311/18, “Schrems II”). For the background and a discussion of the implications of the ruling for commercial transfers of personal data see the commentaries by Christopher Kuner and Theodore Christakis. The focus of my commentary will be on the aspect that EU law on cross-border transfers of personal data to a third country is not deferential to national security powers of that third country. This judgment is remarkable provided that electronic surveillance conducted by Member States’ intelligence authorities for the purpose of national security is off limits for EU law and that exceptions in international agreement are fairly regularly made for national security. This contribution will deal with the embedded assessment of a third country’s national security powers under the General Data Protection Regulation (Regulation (EU) 2016/679, GDPR) and will address the criticism that a third country is held to stricter standards than a Member State of the Union.Schrems II is a continuation of the CJEU’s 2015 judgment in Maximillian Schrems v. Data Protection Commissioner (Case C-362/14, “Schrems I”), which invalidated the Commission’s Decision approving the EU-US Safe Harbour agreement (Decision 2000/520). The ruling notes that the Safe Harbour Decision carries a provision that “national security, public interest, or law enforcement requirements” have primacy over the Safe Harbour principles (para. 86). However, any interference with the rights to privacy and the protection of personal data as guaranteed by Articles 7 and 8 of the Charter of Fundamental Rights in the European Union (Charter) must be limited to what is strictly necessary and the right to effective judicial protection must be observed (paras. 92-95).Continue reading Who would have thought that a case from the UK would potentially shape the EU State aid policy for years to come, being decided just around the time of the UK’s exit from the EU? This situation is made all the more particular as many state aids lawyers have suggested that the applicant, Austria, is rather unlikely to succeed in the case of Hinkley Point C.The Commission Decision 2015/658 of 2015 and the lengthy GC judgment in this case have been summarised and annotated elsewhere. The case concerns the approval of the UK’s scheme for the building of a new nuclear reactor, which involved a guaranteed price for the electricity produced for a number of years.Recently, AG Hogan’s Opinion was released. The Opinion raises a number of issues and shows the importance of the case. One central question that should be answered is whether the promotion of nuclear energy as a core objective of the Euratom Treaty (Euratom) is an objective that might justify State aid. However, the Opinion raises other questions. As brilliantly explained by Fernando Pastor-Merchante, the Opinion proposition has some rather fundamental implications. It could remove Article 107(3)(c) TFEU from the Commission’s toolbox for shaping State aid in the EU. It would reduce the Commission’s competence by allowing the Member States free reign in handing out State aid under Article 107(3)(c) TFEU. The Commission’s discretion would be dramatically reduced, examining only possible effects on competition and trade within the internal market.This brief note focuses, however, on another element of the Opinion. One with equally broad application. The question of whether and which other objective and provisions contained in Treaty provisions are of relevance in the context of the interpretation of EU State aid law, and in particular Article 107(3) TFEU.Continue reading CONTENTSI. Schrems II Places International Data Transfers in a Legal Limbo A. In Theory Schrems II Proposes a Holistic and Coherent Regime of ProtectionB. In Practice It’s Uncertainties Time: The Show Must Go On, But… How?II. Constitutional Implications for Greater EuropeA. A Shakeup of the EU Equivalent Protection MechanismsB. Implications for the European public orderConclusion: Towards Data Localization?IntroductionThe judgment issued by the Court of Justice of the EU (CJEU) on 16 July 2020 in Data Protection Commissioner v Facebook Ireland Limited, Maximillian Schrems (Case C-311/18, “Schrems II”), is without doubt a constitutional judgment. It affirms strongly the importance of maintaining a high level of protection of personal data transferred from the European Union to third countries dealing in a comprehensive way with the issue of government access to data not only by the United States (US) but also by any other country. By doing so it creates a lot of uncertainties on the legal basis of future data transfers from the EU to other countries. And it also has important constitutional implications for the European public order.This article will not discuss the facts of the case or the arguments used by the Court in relation with the Privacy Shield arrangement or Standard Contractual Clauses (SCCs). This has already been done in this blog in the excellent analysis published last Friday by Christopher Kuner. Similarly, a series of very interesting comments have been published since last Thursday ranging from Max Schrems’ Noyb Organisation’s first reactions, to US perspectives on the judgment proposed by Peter Swire, Jennifer Daskal or Kenneth Propp and Peter Swire.The objective of this article will be to offer some complementary thoughts and perspectives focusing on the uncertainties created by the judgment for the future of international data transfers (Part I) and the constitutional implications not only for the EU but also for greater Europe (Part II).Continue reading IntroductionOn 16 July 2020, the Court of Justice of the EU (CJEU) issued its judgment in Data Protection Commissioner v Facebook Ireland Limited, Maximillian Schrems (Case C-311/18, “Schrems II”). The case is a companion to the Court’s 2015 ruling in Maximillian Schrems v. Data Protection Commissioner (Case C-362/14, “Schrems I”), in which the Court invalidated the Commission adequacy decision underlying the EU-US Safe Harbour arrangement.In Schrems II the Court both affirmed the validity of the standard contractual clauses (SCCs) for data transfers under Commission Decision 2010/87/EU (later amended by Commission Decision 2016/2297), and invalidated Commission Decision 2016/1250 that was the legal basis of the EU-US Privacy Shield, which was the successor to the Safe Harbour. Beyond its impact on the SCCs and the Privacy Shield, the Schrems II judgment has important implications for the future regulation of international data transfers.Continue reading In a long running legal battle, some clarity has finally been provided by the Supreme Court of the United Kingdom in relation to the implications of multi-lateral interchange fees (MIFs) between card companies with respect to European Competition Law. In the combined cases of Sainsbury’s Supermarkets Ltd (Respondent) v Visa Europe Services LLC and others (Appellants) Sainsbury’s Supermarkets Ltd and others (Respondents) v Mastercard Incorporated and others (Appellants) [2020] UKSC 24 the Supreme Court found unequivocally in favour of the supermarket chains and held that the MIFs were a restriction of competition contrary to Article 101(1) of the Treaty on the Functioning of the European Union (TFEU). The appellate judgment represents a series of firsts not just for the UK Court but also for the MIF legal debate generally. It is the first UK appellate consideration of the binding effects of Article 101 CJEU jurisprudence and the first ruling by any European Court that Visa’s multilateral interchange fee is a restriction of competition. The irony that such a landmark  decision on issues of European Competition Law was delivered by the UK as it enters into the final six months of its transition period before exiting the Union, is not lost. However all irony aside, it is hoped that the judgment will end the legal debate concerning interchange fees set by Visa and Mastercard once and for all.Continue reading In April 2020 the European Commission challenged before the European Court of Justice (ECJ) two Council Decisions taken within the Partnership Council under the CEPA with Armenia. The implementation of the CEPA required the establishment of joint institutions such as the Partnership Council, the Partnership Committee, subcommittees and other bodies. The Council laid down procedural rules for the functioning of the joint bodies under the CEPA in two separate Decisions: the first one relates to Title II of the Agreement and covers Common Foreign and Security Policy (CFSP) aspects; the other one relates to the rest of the Agreement and covers TFEU-related matters respectively.The Commission did not agree with the choice of legal bases of the CFSP-related Decision, notably the substantive legal basis of Article 37 TEU and the procedural legal basis of the second paragraph of Article 218(8) TFEU. Furthermore, according to the Commission, the Council was not allowed to split artificially a single act into two different parts with different centres of gravity.Continue reading In the ‘Brussels Effect: how the European Union rules the world’ Bradford described how EU regulations impact standards around the world through the process of unilateral regulatory globalization. The book develops on from Bradford s highly influential earlier article.‘Territorial extension’ is described by Scott as the practice of enabling the EU ‘to govern activities that are not centered upon the territory of the EU and to shape the focus and content of third country and international law.’ I have described ‘rule-transfer’ as ‘a means or process by which EU legal rules are adopted in third country legal orders’ and showed how EU rules move and are adopted abroad.Continue reading Follow us on TwitterMy TweetsEmail subscription Please enter your email address below if you would like to receive email notifications for new posts.Join 8,838 other subscribers. Email Address European Law Blog The European Law Blog aims to highlight, and comment on, current developments in EU case law and legislation. Our posts are short comments on judgments and legislation and are intended for anyone who wishes to stay informed on EU law.

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